Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

25 May 2010

Still All-Meat Link Sausages

Sigh. Once again, Cory Doctorow makes the mistake of assuming that what works for him necessarily works for everyone. Mr Doctorow is famous for publishing free copies of his books online as part of his publicity/promotional strategy. And that is why it can (not does, but can) work for him: It's part of a specific strategy... in a specific context. It is not, however, a universal strategy, nor does it apply to every context. For example, there's no need whatsoever for a textbook publisher to publish a free copy online as an inducement to students! (Whether textbook publishers should be doing something different with their entire model is another question indeed; but that's part of my point.)

Another aspect of this point  one that Mr Doctorow has, seemingly, refused to acknowledge  is that the subject matter and tone of the books he releases for free on the 'net are closely related indeed to his day job. That is, he is not relying upon money earned from sales of those books for his living, and further can count on them to enhance his money-making platform. Consider, on the other hand, Scott Turow: I seriously, seriously doubt that he has ever gotten a client for his white-collar-crime defense practice (and he's a lucky man, being a partner at a BigLaw firm on a part-time basis for years) based upon his novels of Kindle County. Consider, too, Ursula K. Le Guin: Her income is almost entirely from the sales of her copyrighted works. The point is that the author's own context matters, too; and that Tim O'Reilly is full of himself when he proclaims that "the big problem [for authors/artists] isn't piracy, it's obscurity," since he has no apparent perception of the author/artist whose economic circumstances are marginal and/or slow and over time. The types of books released by O'Reilly's own firm epitomize that error: They are factual compilations with short shelf lives (useful as they often are, although I'll be happy to never see another copy/version of Designing With JavaScript), and thus least likely to be e-pirate-bait in the first place... particularly since, as they tend to involve lots and lots of source code, typographical errors typically introduced by e-pirates cannot be ignored/glided past by the reader!

In short: The idea is not the expression; the expression is not the idea; and conflating the two leads to insupportable conclusions outside of the specific context.

ClimateGate is an example of information warfare in action. In strategic terms, ClimateGate was an offensive use of the fog of war by combatants (the denialists, in case my sympathies are not clear) who did not have the capability (the facts, scientific doctrine, etc.) to wage a straight-up, "conventional" political fight. Authors of political thrillers  and I include people who aspire to write the next 24 in there  should keep that in mind: An out-of-power and/or "wrong" group that presents a credible threat probably isn't going to be stupid enough to engage in a frontal assault against prepared defenses, even in information-intense warfare. At least ClimateGate was over e-mails, and not waged in the pages of color-illustrated children's books, which would have been an actual climate problem. Or, as at Harvard's library system, a climate-controlled problem (that sort of links back to the preceding item).

It's been a century since your actual death, Mr Clemens. May we publish your memoirs now? The reference to a UK-based paper for the first true giant of American letters is, by the way, entirely on purpose... and directed at the creators and perpetuators of the canon of American literature who refused/refuse to accept the mediocrity of what came before him, and too much of what came after him until the 1930s. <SARCASM> Maybe one of the reasons that high school students hate English classes so much  leaving aside the endless drill forms for Mrs Grundy's version of "proper grammar"  is that out of some sense of developing a national(istic) identity we make them read utter crap like Hawthorne (instead of Austen) and lesser crap like Whitman (instead of Tennyson). After all, if it's American, it must be more appropriate for American student to read than other stuff from across the pond... except as it relates to our Confederate legacy. Or frighteningly plausible hypothetical Judy Blume novels (damn you Scalzi, my eyes are bleeding). </SARCASM>

A syncopated counterpoint to yesterday's item on James Frey as a class-action defendant for his memoir-fiction-thingy: fact-checking literary fiction can, indeed, be made to work... at least in theory; we'll see how it works in practice. And whether it leads to yet more author feuds, or at least more visible author feuds, when unfriends fact-check each others' works. I still think fact-checking is best done before publication.

The Economist  a somewhat conservative magazine, but in a European sense (which means that it's not entirely about fact-free ideology)  has an interesting article comparing internet access to common carriage at sea. It's interesting as far as it goes... but it neglects a critical problem. Common carriage at sea is a relic of mercantilist economics, and only makes sense in a mercantilist context. Intellectual property resembles mercantilism more than it does post-Adam-Smith comparative advantage (I really, really will get that essay finished and posted on my SSRN page Really Soon Now). However, the telecomm companies that are making all of the complaints are creatures of post-Adam-Smith comparative advantage economics that answer to investors who know nothing but comparative advantage (and that's despite the regulated nature of their business due to the natural monopoly problem). So, in the end, that article leaves us with more questions than before we read it... although that's not necessarily a bad thing!

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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